NORTHERN TERRITORY OF AUSTRALIA
Construction Contracts (Security of Payments) Act
An Act to secure payments under construction contracts and provide for the
adjudication of disputes about payments under construction contracts, and for
related purposes
Note
This Act is generally similar, but not identical, to Western Australia’s
Construction Contracts Act 2004.
The following notes are intended to provide pointed to the more important
matters of interpretation that have emerged from the decided cases.
Construction Contracts (Security of Payments) Act ................ 1
Part 1
Preliminary matters ............................................ 5
Division 1
Introduction
5
Section 1
Short title
6
Section 2
Commencement
6
Section 3
Object and its achievement
6
Division 2
Interpretation
6
Section 4
Definitions
6
Section 5
Construction contract
7
Section 6
Construction work
7
Section 7
Goods and services related to construction work
8
Section 8
Payment dispute
9
Division 3
Operation of Act
9
Section 9
Construction contracts to which this Act applies
Section 10
No contracting out
10
Section 11
Act binds Crown
10
Section 11A Interaction with Community Justice Centre Act
9
10
Part 2
Prohibited and implied provisions of
construction contracts .................................... 10
Division 1
Prohibited provisions
10
Section 12
Pay if paid and pay when paid provisions
10
Section 13
Provisions requiring payment to be made after 50 days
10
Section 14
Prescribed provisions
11
Section 15
Other provisions of contract not affected
11
Section 16
Variations of contractual obligations
11
Section 17
Contractor's entitlement to be paid
11
Section 18
Contractor's entitlement to claim progress payments
11
Section 19
Making payment claims
11
Section 20
Responding to payment claims and time for payment
11
Section 21
Interest on overdue payments
12
Section 22
Ownership of goods
12
Section 23
Duties as to unfixed goods on insolvency
12
Section 24
Retention money
12
Section 25
Interpretation of implied provisions
12
Part 3
Adjudication of disputes.................................. 12
Division 1
Object of adjudication
Section 26
Division 2
Object
12
12
Starting adjudication
12
Section 27
Who can apply for adjudication
12
Section 28
Applying for adjudication
13
Section 28A Withdrawing an application for adjudication
13
Section 29
Responding to application for adjudication
14
Section 30
Appointment of adjudicator in absence of agreed appointment
14
Section 31
Disqualification of adjudicator on grounds of conflict of interest
14
Section 32
Review of disqualification decision
15
Division 3
Adjudication process
15
Section 33
Adjudicator's functions
15
Section 34
Adjudication procedure
16
Section 35
Interest until determination
17
Section 36
Costs of parties to payment disputes
17
Section 37
Evidentiary value of certificates of completion and amounts payable
18
Section 38
Content of determination
18
Section 39
Dismissed applications
18
Division 4
Effect of determinations
18
Section 40
Determinations have effect despite other proceedings
19
Section 41
Payment of amount determined and interest
19
Section 42
Progress payment under determination to be on account
19
Section 43
Determination final
19
Division 5
Enforcing determinations
19
Section 44
Contractor may suspend obligations for principal's non-compliance
20
Section 45
Determination may be enforced as judgment
20
Division 6
General
20
Section 46
Costs of adjudications
20
Section 47
Effect of this Part on civil proceedings
21
Section 48
Review of adjudicator's decision to dismiss application
22
Part 4
Administration .................................................. 22
Division 1
Construction Contracts Registrar
22
Section 49
Registrar
22
Section 50
Provisions relating to appointment of non-public sector employee
23
Section 51
Functions
23
Division 2
Adjudicators and prescribed appointers
23
Section 52
Registering adjudicators
23
Section 53
Review of registration decision
24
Section 53A Adjudicators to give Registrar information
24
Section 54
Publication of adjudicators' decisions
24
Section 55
Adjudicators' and prescribed appointers' rates to be published
24
Division 3
Miscellaneous provisions
25
Section 56
Protection from liability
25
Section 57
Evidentiary provisions
25
Part 5
Reviews of decisions ....................................... 25
Section 58
Application of Part
25
Section 59
Application for review
25
Section 60
Review by Local Court
25
Section 61
Operation and implementation of decision
25
Section 62
Decision on review
26
Section 63
Annual report
26
Section 64
Regulations
26
Section 65
Part 7
Review of Act
27
Repeals and transitional matters .................... 27
Section 66
Repeal of Workmen's liens legislation
27
67
Transitional provision
27
Division 1
1
Division 2
2
Division 3
Variations
Variations must be agreed
Contractor's entitlement to be paid
Contractor entitled to be paid
Claims for progress payments
28
28
28
28
28
3
Entitlement to make claim
28
4
When claim can be made
28
Division 4
5
Division 5
6
Division 6
7
Division 7
8
Division 8
9
Division 9
10
Making claims for payment
Content of claim for payment
Responding to payment claims
Responding to payment claim by notice of dispute or payment
Interest on overdue payments
Interest payable on overdue payments
Ownership of goods
When ownership of goods supplied by contractor passes
Duties about unfixed goods on insolvency
Duties of principal and other persons about unfixed goods on
insolvency
Retention money
Retention money to be held on trust
Part 1 Preliminary matters
Division 1 Introduction
28
28
29
29
30
30
30
30
30
30
31
31
Section 1
Short title
This Act may be cited as the Construction Contracts (Security of Payments)
Act.
Section 2
Commencement
This Act comes into operation on the date, or respective dates, fixed by the
Administrator by notice in the Gazette.
Section 3
Object and its achievement
(1)
The object of this Act is to promote security of payments under
construction contracts.
(2)
The object of this Act is to be achieved by:
(a)
facilitating timely payments between the parties to construction
contracts; and
(b)
providing for the rapid resolution of payment disputes arising
under construction contracts; and
(c)
providing mechanisms for the rapid recovery of payments under
construction contracts.
Division 2 Interpretation
Section 4
Definitions
In this Act:
adjudication means the adjudication of a payment dispute under Part 3.
applicant, for an adjudication, means the person who, under section 28,
makes application for the adjudication.
appointed adjudicator, for a payment dispute, means the registered
adjudicator who, having been appointed under Part 3 to adjudicate the
dispute, has been served with the application for adjudication.
civil works includes:
(a)
a road, railway, tramway, aircraft runway, canal, waterway,
harbour, port or marina; and
(b)
a line or cable for electricity or telecommunications; and
(c)
a pipeline for water, gas, oil, sewage or other material; and
(d)
a path, pavement, ramp, tunnel, slipway, dam, well, aqueduct,
drain, levee, seawall or retaining wall; and
(e)
any works, apparatus, fittings, machinery or plant associated
with any works mentioned in paragraph (a), (b), (c) or (d).
contractor, see section 5(1).
construction contract, see section 5.
construction work, see section 6.
determination means a determination made on an adjudication under Part 3 of
the merits of a payment dispute.
goods, in relation to construction work, see section 7(1).
obligations, of a contractor under a construction contract, means the
obligations mentioned in section 5(1) the contractor has under the contract.
on-site services, in relation to construction work, see section 7(3).
party, to an adjudication, means the applicant and any person on whom an
application for the adjudication is served.
payment claim means a claim made under a construction contract:
(a)
by the contractor to the principal for payment of an amount in
relation to the performance by the contractor of its obligations under the
contract; or
(b)
by the principal to the contractor for payment of an amount in
relation to the performance or non-performance by the contractor of its
obligations under the contract.
payment dispute, see section 8.
prescribed appointer means a person prescribed as such by the Regulations.
principal, for a construction contract, means the party to whom the contractor
is bound under the contract.
professional services, in relation to construction work, see section 7(2).
registered adjudicator means an individual registered as such under section
52.
Registrar means the Construction Contracts Registrar appointed under
section 49.
Regulations means the Regulations made under this Act.
site in the Territory means a site in the Territory, whether on land or off-shore.
working day means a day other than a Saturday or Sunday or a public holiday
as defined in the Public Holidays Act.
Section 5
Construction contract
(1)
A construction contract is a contract (whether or not in writing) under
which a person (the contractor) has one or more of the following obligations:
(a)
to carry out construction work;
(b)
to supply to the site where construction work is being carried out
any goods that are related to construction work;
(c)
to provide, on or off the site where construction work is being
carried out, professional services that are related to the construction
work;
(d)
to provide, on the site where construction work is being carried
out, on-site services that are related to the construction work.
(2)
In Part 3, a construction contract includes:
(a)
a contract modified under section 13; and
(b)
a contract in which a provision is implied under Part 2,
Division 2.
Section 6
Construction work
(1)
Construction work is any of the following work on a site in the Territory:
(a)
reclaiming land, draining land or preventing the subsidence,
movement or erosion of land;
(b)
installing, altering, repairing, restoring, maintaining, extending,
dismantling, demolishing or removing any works, apparatus, fittings,
machinery or plant associated with any work mentioned in paragraph
(a);
(c)
constructing the whole or a part of any civil works, or a building
or structure, that forms or will form (whether permanently or not and
whether or not in the Territory), part of land or the seabed (whether
above or below it);
(d)
fixing or installing on or in anything mentioned in paragraph (c)
any fittings forming, or to form, (whether or not permanently) part of the
thing, including:
(i)
fittings for electricity, gas, water, fuel oil, air, sanitation,
irrigation,
telecommunications,
air-conditioning,
heating,
ventilation, fire protection, cleaning, the security of the thing or
the safety of people; and
(ii)
lifts, escalators, insulation, furniture or furnishings;
(e)
altering, repairing, restoring, maintaining, extending, dismantling,
demolishing or removing anything mentioned in paragraph (c) or any
fittings described in paragraph (d) that form part of the thing;
(f)
any work that is preparatory to, necessary for, an integral part of
or for the completion of any work mentioned in paragraph (a), (b), (c),
(d) or (e), including:
(i)
site or earthworks, excavating, earthmoving, tunnelling or
boring; and
(ii)
laying foundations; and
(iii)
erecting, maintaining or dismantling temporary works, a
temporary building or a temporary structure, including a crane or
other lifting equipment and scaffolding; and
(iv)
cleaning, painting, decorating or treating any surface; and
(v)
site restoration or landscaping;
(g)
any work that is prescribed by the Regulations to be construction
work for this Act.
(2)
However, construction work does not include any of the following work
on a site in the Territory:
(a)
drilling for the purposes of discovering or extracting oil or natural
gas, whether or not on land;
(b)
constructing a shaft, pit or quarry, or drilling, for the purposes of
discovering or extracting any mineral bearing or other substance;
(c)
constructing, installing, altering, repairing, restoring, maintaining,
extending, dismantling, demolishing or removing wholly artistic works
including sculptures, installations and murals;
(d)
work prescribed by the Regulations not to be construction work
for this Act.
(3)
In addition, construction work does not include constructing the whole
or part of any watercraft.
Section 7
Goods and services related to construction work
(1)
Goods are related to construction work if they are:
(a)
materials or components (whether or not pre-fabricated) that will
form part of anything mentioned in section 6(1)(b) or (c) or of any
fittings mentioned in section 6(1)(d); or
(b)
any fittings mentioned in section 6(1)(d) (whether or not
pre-fabricated); or
(c)
plant or materials (whether supplied by sale, hire or otherwise)
for use in connection with the carrying out of the construction work at
the site of the construction work; or
(d)
goods prescribed by the Regulations to be goods related to
construction work for this Act.
(2)
Professional services are related to construction work if they are:
(a)
services that are provided by a profession and that relate directly
to construction work or to assessing its feasibility (whether or not it
proceeds), including surveying, planning, costing, testing, architectural,
design, plan drafting, engineering, quantity surveying and project
management services, but not including accounting, financial or legal
services; or
(b)
services that are provided by a profession that are prescribed by
the Regulations to be professional services related to construction work
for this Act.
(3)
On-site services are related to construction work if they are services
(other than professional services):
(a)
that relate directly to construction work, including providing
labour to carry out construction work; or
(b)
prescribed by the Regulations to be on-site services related to
construction work for this Act.
(4)
The Regulations may prescribe goods, professional services or on-site
services that are not related to construction work for this Act.
Section 8
Payment dispute
A payment dispute arises if:
(a)
when the amount claimed in a payment claim is due to be paid
under the contract, the amount has not been paid in full or the claim
has been rejected or wholly or partly disputed; or
(b)
when an amount retained by a party under the contract is due to
be paid under the contract, the amount has not been paid; or
(c)
when any security held by a party under the contract is due to be
returned under the contract, the security has not been returned.
Notes
“is due”
This means “is claimed to be due”; Independent Fire Sprinklers v Sunbuild
[2008] NTSC 46 at paragraph 52.
Division 3 Operation of Act
Section 9
Construction contracts to which this Act applies
(1)
This Act applies to a construction contract entered into after the
commencement of this section.
(2)
This Act applies to a construction contract:
(a)
irrespective of whether it is written or oral or partly written and
partly oral; and
(b)
irrespective of where it is entered into; and
(c)
irrespective of whether it is expressed to be governed by the law
of a place other than the Territory.
(3)
This Act does not apply to a construction contract to the extent to which
it contains provisions under which a party is bound to carry out construction
work, or to supply goods or services that are related to construction work, as a
prescribed employee of the party for whom the work is to be carried out or to
whom the goods or services are to be supplied.
(4)
This Act, or a provision of this Act, does not apply to a construction
contract, or a class of construction contracts, prescribed by the Regulations as
a contract or class of contracts to which this Act, or that provision, does not
apply.
(5)
In this section:
prescribed employee means an employee subject to an award or a certified
agreement made under the Fair Work Act 2009 (Cth).
Section 10
No contracting out
(1)
A provision in an agreement or arrangement (whether a construction
contract or not and whether in writing or not) that purports to exclude, modify
or restrict the operation of this Act has no effect.
(2)
A provision in an agreement or arrangement that has no effect because
of subsection (1) does not prejudice or affect the operation of other provisions
of the agreement or arrangement.
(3)
Any purported waiver (whether in a construction contract or not and
whether or not in writing) of an entitlement under this Act has no effect.
Section 11
Act binds Crown
This Act binds the Crown in right of the Territory and, to the extent the
legislative power of the Legislative Assembly permits, the Crown in all its other
capacities.
Section 11A Interaction with Community Justice Centre Act
The operation of this Act is subject to Part 4 of the Community Justice Centre
Act.
Note for section 11A:
Part 4 of the Community Justice Centre Act provides for the Director of the
Community Justice Centre to be treated as a prescribed appointer for this Act.
That Part also creates exceptions to some of the rules in this Act.
Part 2 Prohibited and implied provisions of construction contracts
Division 1 Prohibited provisions
Section 12
Pay if paid and pay when paid provisions
A provision in a construction contract has no effect if it purports to make the
liability of a party (party A) to pay an amount under the contract to another
party contingent (whether directly or indirectly) on party A being paid an
amount by another person (whether or not a party).
Section 13
Provisions requiring payment to be made after 50 days
A provision in a construction contract that purports to require a payment to be
made more than 50 days after the payment is claimed must be read as being
amended to require the payment to be made within 28 days after it is claimed.
Section 14
Prescribed provisions
A provision in a construction contract has no effect if it is a provision that is
prescribed by the Regulations to be a prohibited provision.
Section 15
Other provisions of contract not affected
A provision in a construction contract that has no effect because of section 12
or 14 or that is modified under section 13 does not prejudice or affect the
operation of other provisions of the contract.
Division 2
Implied provisions
Section 16
Variations of contractual obligations
The provisions in the Schedule, Division 1 are implied in a construction
contract that does not have a written provision about variations of the
contractor's obligations under the contract.
Section 17
Contractor's entitlement to be paid
The provisions in the Schedule, Division 2 are implied in a construction
contract that does not have a written provision about the amount, or a way of
determining the amount, that the contractor is entitled to be paid for the
obligations the contractor performs.
Section 18
Contractor's entitlement to claim progress payments
The provisions in the Schedule, Division 3 are implied in a construction
contract that does not have a written provision about whether or not the
contractor is able to make a claim to the principal for a progress payment for
the obligations under the contract the contractor has performed.
Section 19
Making payment claims
The provisions in the Schedule, Division 4 are implied in a construction
contract that does not have a written provision about how a party must make a
claim to another party for payment.
Section 20
Responding to payment claims and time for payment
The provisions in the Schedule, Division 5 about the following matters are
implied in a construction contract that does not have a written provision about
the matter:
(a)
when and how a party must respond to a payment claim made
by another party;
(b)
by when a payment must be made.
Notes
“written provision about the matter’
Subsection (a) and (b) are not conjunctive; section 20 applies if either or both
matters are not provided for by the contract; Independent Fire Sprinklers v
Sunbuild [2008] NTSC 46 paragraphs 55 and 56.
“by when a payment must be made”
This means when payment must be made in response to a payment claim;
ibid paragraph 56
Section 21
Interest on overdue payments
The provisions in the Schedule, Division 6 are implied in a construction
contract that does not have a written provision about interest to be paid on
any payment that is not made at the time required by the contract.
Section 22
Ownership of goods
The provisions in the Schedule, Division 7 are implied in a construction
contract that does not have a written provision about when the ownership of
goods passes from the contractor for goods that are:
(a)
related to construction work; and
(b)
supplied to the site of the construction work by the contractor
under its obligations under the contract.
Section 23
Duties as to unfixed goods on insolvency
The provisions in the Schedule, Division 8 are implied in a construction
contract that does not have a written provision about what must happen to
unfixed goods of a kind mentioned in section 22 if either of the following
persons becomes insolvent:
(a)
the principal;
(b)
a person for whom, directly or indirectly, the principal is
performing construction work or to whom, directly or indirectly, the
principal is supplying goods or services that are related to construction
work.
Section 24
Retention money
The provisions in the Schedule, Division 9 are implied in a construction
contract that does not have a written provision about the status of an amount
retained by the principal for the performance by the contractor of its
obligations under the contract.
Section 25
Interpretation of implied provisions
The Interpretation Act and sections 4 to 8 of this Act apply to the interpretation
of a provision that is implied in a construction contract under this Part despite
any provision in a construction contract to the contrary.
Part 3 Adjudication of disputes
Division 1 Object of adjudication
Section 26
Object
The object of an adjudication of a payment dispute is to determine the dispute
fairly and as rapidly, informally and inexpensively as possible.
Division 2 Starting adjudication
Section 27
Who can apply for adjudication
If a payment dispute arises under a construction contract, any party to the
contract may apply to have the dispute adjudicated under this Part unless:
(a)
an application for adjudication has already been made by a party
(whether or not a determination has been made) but subject to sections
31(6A) and 39(2); or
(b)
the dispute is the subject of an order, judgment or other finding
by an arbitrator or other person or a court or other body dealing with a
matter arising under the contract.
Section 28
Applying for adjudication
(1)
To apply to have a payment dispute adjudicated, a party to the contract
must, within 90 days after the dispute arises or, if applicable, within the period
provided for by section 39(2)(b):
(a)
prepare a written application for adjudication; and
(b)
serve it on each other party to the contract; and
(c)
serve it on:
(i)
if the parties to the contract have appointed a registered
adjudicator and that adjudicator consents – the adjudicator; or
(ii)
if the parties to the contract have appointed a prescribed
appointer – the appointer; or
(iii)
otherwise – a prescribed appointer chosen by the party;
and
(d)
provide any deposit or security for the costs of the adjudication
that the adjudicator or prescribed appointer requires under
section 46(7) or (8).
(2)
The application must:
(a)
be prepared in accordance with, and contain the information
prescribed by, the Regulations; and
(b)
state the details of or have attached to it:
(i)
the construction contract involved or relevant extracts of
it; and
(ii)
any payment claim that has given rise to the payment
dispute; and
(c)
state or have attached to it all the information, documents and
submissions on which the party making it relies in the adjudication.
(3)
Subsection (1) applies to a dispute even if it arises within the 90 day
period immediately preceding the commencement of this subsection.
Section 28A Withdrawing an application for adjudication
(1)
If a party has applied for adjudication of a dispute under section 28(1),
the party may withdraw the application before an adjudicator has been
appointed by giving written notice to:
(a)
the prescribed appointer served with the application under
section 28(1)(c)(ii) or (iii); and
(b)
each other party to the contract.
(2)
If an adjudicator has been appointed, the party may withdraw the
application by giving written notice to:
(a)
the adjudicator; and
(b)
each other party to the contract.
(3)
However, the adjudicator must refuse the withdrawal if:
(a)
a party to the contract objects to the withdrawal; and
(b)
in the opinion of the adjudicator, the party objecting to the
withdrawal has a legitimate interest in obtaining a determination of the
application.
Section 29
Responding to application for adjudication
(1)
Within 10 working days after the date on which a party to a construction
contract is served with an application for adjudication, the party must prepare
a written response to the application and serve it on:
(a)
the applicant and on any other party that has been served with
the application; and
(b)
the appointed adjudicator or, if there is no appointed adjudicator,
on the prescribed appointer on which the application was served under
section 28(1)(c).
(2)
The response must:
(a)
be prepared in accordance with, and contain the information
prescribed by, the Regulations; and
(b)
state the details of, or have attached to it, any rejection or
dispute of the payment claim that has given rise to the dispute; and
(c)
state or have attached to it all the information, documents and
submissions on which the party making it relies in the adjudication.
Section 30
Appointment of adjudicator in absence of agreed appointment
(1)
If an application for adjudication is served on a prescribed appointer,
the appointer must, within 5 working days after being served:
(a)
appoint a registered adjudicator to adjudicate the payment
dispute concerned; and
(b)
send the application and any response received by it to the
adjudicator; and
(c)
give written notice to the parties and Registrar accordingly.
(2)
If a prescribed appointer does not make an appointment under
subsection (1), the Registrar may appoint a registered adjudicator to
adjudicate the payment dispute concerned.
(3)
If the Registrar makes an appointment under subsection (2), the
Registrar must:
(a)
give written notice to the prescribed appointer accordingly and
require the appointer to serve the application and any response
received by it on the adjudicator appointed by the Registrar; and
(b)
give written notice to the parties accordingly.
Section 31
Disqualification of adjudicator on grounds of conflict of interest
(1)
An appointed adjudicator is disqualified from adjudicating the dispute if
the adjudicator has a material personal interest in:
(a)
the payment dispute concerned; or
(b)
the construction contract under which the dispute has arisen; or
(c)
any party to the contract.
(2)
If an appointed adjudicator is disqualified, the adjudicator must give
written notice to the parties and Registrar of the disqualification and the
reasons for it.
(3)
A party to a payment dispute may apply to the Registrar for, and the
Registrar may make, a declaration that the appointed adjudicator is
disqualified under subsection (1) from adjudicating the dispute.
(4)
The application must be made before the person is notified of a
decision or determination made under section 33(1).
(5)
If the Registrar makes the declaration sought, the Registrar must give
written notice to the adjudicator and the parties of the declaration.
(6)
If a notice (a disqualification notice) is given by or to an appointed
adjudicator under subsection (2) or (5), the adjudicator's appointment ends
5 working days after the date of the disqualification notice unless, before the
end of that period, each party gives the adjudicator written authority to
continue as the appointed adjudicator.
(6A) If the appointment of an appointed adjudicator ends under
subsection (6):
(a)
the applicant may make a further application for adjudication
under section 28; and
(b)
in calculating the period within which the application may be
made, the period from the date on which the previous application was
served under section 28(1)(c) to the date on which the appointment
ends is not counted.
(6B) However if, as calculated under subsection (6A)(b), the applicant does
not have at least 14 days to make the further application, the further
application may be made within 14 days after the date on which the
appointment ends.
(7)
If the Registrar refuses to make the declaration sought, the Registrar
must give written notice to the adjudicator and the parties of the refusal.
(8)
The notice under subsection (5) or (7) must state:
(a)
the reasons for the decision; and
(b)
a person given the notice may apply for a review of the decision
to the Local Court within 28 days after receipt of the notice.
Section 32
Review of disqualification decision
A person who is aggrieved by a decision of the Registrar under section 31 to
make or refuse to make a declaration that an appointed adjudicator is
disqualified from adjudicating a dispute may apply to the Local Court for a
review of the decision.
Division 3 Adjudication process
Section 33
Adjudicator's functions
(1)
An appointed adjudicator must, within the prescribed time or any
extension of it under section 34(3)(a):
(a)
dismiss the application without making a determination of its
merits if:
(i)
the contract concerned is not a construction contract; or
(ii)
the application has not been prepared and served in
accordance with section 28; or
(iii)
an arbitrator or other person or a court or other body
dealing with a matter arising under a construction contract
makes an order, judgment or other finding about the dispute that
is the subject of the application; or
(iv)
satisfied it is not possible to fairly make a determination:
(A)
because of the complexity of the matter; or
(B)
because the prescribed time or any extension of it
is not sufficient for another reason; or
(b)
otherwise – determine on the balance of probabilities whether
any party to the payment dispute is liable to make a payment or to
return any security and, if so, determine:
(i)
the amount to be paid, or security to be returned, and any
interest payable on it under section 35; and
(ii)
the date on or before which the amount must be paid or
the security must be returned.
(2)
If the application is not dismissed or determined under subsection (1)
within the prescribed time, or any extension of it under section 34(3)(a), the
application is taken to be dismissed when the time ends.
(3)
In this section:
prescribed time means:
(a)
if the appointed adjudicator is served with a response under
section 29(1) – 10 working days after the date of the service of the
response; or
(b)
otherwise – 10 working days after the last date on which a
response is required to be served under section 29(1).
Notes
“must...dismiss the application…if”
The adjudicator must act on his own motion; he is not deciding an
interlocutory application; Perrinepod v Georgiou [2011]WASCA 217 at
paragraph 18.
Section 34
Adjudication procedure
(1)
For making a determination, an appointed adjudicator:
(a)
must act informally and if possible make the determination on
the basis of:
(i)
the application and its attachments; and
(ii)
if a response has been prepared and served in
accordance with section 29, the response and its attachments;
and
(b)
is not bound by the rules of evidence and may inform himself or
herself in any way the adjudicator considers appropriate.
(2)
In order to obtain sufficient information to make a determination, an
appointed adjudicator may:
(a)
request a party to make a, or a further, written submission or to
provide information or documents, and may set a deadline for doing so;
or
(b)
request the parties to attend a conference with the adjudicator;
or
(c)
unless all the parties object:
(i)
inspect any work or thing to which the payment dispute
relates, provided the occupier of any place concerned consents
to the entry and inspection; or
(ii)
arrange for anything to which the payment dispute relates
to be tested, provided the owner of the thing consents to the
testing; or
(iii)
engage an expert to investigate and report on any matter
relevant to the payment dispute.
(3)
An appointed adjudicator may:
(a)
with the Registrar's consent, extend the time for making a
determination under section 33(1); or
(b)
with the consent of the parties, adjudicate simultaneously 2 or
more payment disputes between the parties; or
(c)
with the consent of all the parties concerned, adjudicate the
payment dispute simultaneously with another payment dispute.
(4)
If an appointed adjudicator adjudicates simultaneously 2 or more
payment disputes, the adjudicator may, in adjudicating one, take into account
information or documents the adjudicator receives in relation to the other and
vice versa.
(5)
An adjudicator's power to make a determination is not affected by the
failure of either or both of the parties to make a submission or provide
information or documents within time or to comply with the adjudicator's
request to attend a conference with the adjudicator.
(6)
To the extent that the practice and procedure in relation to
adjudications is not regulated by this Part or the Regulations, an appointed
adjudicator may determine the adjudicator's own procedure.
Section 35
Interest until determination
(1)
If an appointed adjudicator determines that a party to a payment
dispute is liable to make a payment, the adjudicator may also determine that
interest must be paid on:
(a)
if the payment is overdue under the construction contract – the
payment in accordance with the contract; or
(b)
otherwise – the whole or a part of the payment from the date the
payment dispute arose at a rate not greater than the rate prescribed by
the Regulations until and including the date of the determination.
(2)
Subsection (1) does not authorise the awarding of interest on interest.
Section 36
Costs of parties to payment disputes
(1)
The parties to a payment dispute bear their own costs in relation to an
adjudication of the dispute (including the costs the parties are liable to pay
under section 46).
(2)
However, if an appointed adjudicator is satisfied a party to a payment
dispute incurred costs of the adjudication because of frivolous or vexatious
conduct on the part of, or unfounded submissions by, another party, the
adjudicator may decide that the other party must pay some or all of those
costs.
(3)
If an appointed adjudicator makes a decision under subsection (2), the
adjudicator must:
(a)
decide the amount of the costs and the date on which the
amount is payable; and
(b)
give written notice of the decisions and the reasons for them to
the parties.
(4)
Divisions 4 and 5 apply (with the necessary changes) to a decision
made under subsection (2) as if it were a determination of an appointed
adjudicator.
Section 37
Evidentiary value of certificates of completion and amounts payable
(1)
This section applies if:
(a)
the construction contract to which a payment dispute relates
provides for a person to certify:
(i)
obligations under the contract have been performed; or
(ii)
the amount of a payment that must be made by a party;
and
(b)
the certificate is provided by a party to an adjudication in the
course of adjudication.
(2)
For the adjudication:
(a)
if the certificate relates to the final amount payable under the
contract and has the effect of finalising the contract – the certificate is
taken to be conclusive evidence of its contents; or
(b)
otherwise – the certificate has the evidentiary weight the
appointed adjudicator considers appropriate.
Section 38
Content of determination
(1)
An appointed adjudicator's decision made under section 33(1)(b) must:
(a)
be in writing; and
(b)
be prepared in accordance with, and contain the information
prescribed by, the Regulations; and
(c)
state:
(i)
the amount to be paid and the date on or before which it
must be paid; or
(ii)
the security to be returned and the date on or before
which it must be returned; and
(d)
give reasons for the determination; and
(e)
identify any information in it that, because of its confidential
nature, is not suitable for publication by the Registrar under section 54.
(2)
The adjudicator must give a copy of the decision to the parties to the
adjudication and the Registrar.
Section 39
Dismissed applications
(1)
If, under section 33(1)(a), an appointed adjudicator dismisses an
application for adjudication, the adjudicator must give written notice of the
decision and the reasons for it to the parties and to the Registrar.
(2)
If, under section 33(2), an application for an adjudication of a payment
dispute is taken to be dismissed:
(a)
this Part does not prevent a further application being made
under this Part for an adjudication of the dispute; and
(b)
any further application must be made within 28 days after the
previous application is taken to be dismissed.
Division 4 Effect of determinations
Section 40
Determinations have effect despite other proceedings
An appointed adjudicator's determination is binding on the parties to the
construction contract under which the payment dispute concerned arose even
if other proceedings relating to the payment dispute have been started before
an arbitrator or other person or a court or other body.
Section 41
Payment of amount determined and interest
(1)
A party that is liable to pay an amount under a determination must do
so on or before the date stated in the determination.
(2)
Unless the determination provides otherwise, interest at the rate
prescribed by the Regulations must be paid on the part of the amount that is
unpaid after the date stated in the determination.
(3)
The interest forms part of the determination.
(4)
If, under section 45(1), a judgment is entered in the terms of a
determination, interest under subsection (2) ceases to accrue.
Section 42
Progress payment under determination to be on account
(1)
This section applies if:
(a)
an appointed adjudicator:
(i)
determines a payment dispute concerning a claim by a
contractor for payment for part performance of its obligations
under the contract but not for a final payment by the principal;
and
(ii)
determines that the principal must pay the contractor an
amount for the claim; and
(b)
the principal, in accordance with the determination, pays the
amount.
(2)
Payment of the amount is taken to be an advance towards the total
amount payable under the contract by the principal to the contractor.
Section 43
Determination final
(1)
If on the adjudication of a payment dispute the appointed adjudicator
makes a determination:
(a)
the adjudicator cannot subsequently amend or cancel the
determination except with the consent of the parties; and
(b)
a party to the dispute cannot later apply for an adjudication of
the dispute.
(2)
Despite subsection (1)(a), the adjudicator may, on the application of a
party or, after notifying the parties, on the adjudicator's own initiative, correct
any of the following in the determination:
(a)
an accidental slip or omission;
(b)
a material arithmetic error;
(c)
a material mistake in the description of any person, thing or
matter.
Division 5 Enforcing determinations
Section 44
Contractor may suspend obligations for principal's non-compliance
(1)
If a determination requires the principal to pay the contractor an
amount and the principal does not pay in accordance with the determination,
the contractor may give the principal written notice of the contractor's intention
to suspend the performance of its obligations under the contract.
(2)
The notice must:
(a)
be prepared in accordance with, and contain the information
prescribed by, the Regulations; and
(b)
state the date on which the contractor intends to suspend the
performance of its obligations; and
(c)
be given to the principal at least 3 working days before that date.
(3)
If on the date stated in the notice the principal has not paid the
contractor the amount in accordance with the determination, the contractor
may suspend the performance of its obligations until no longer than 3 working
days after the date on which the amount is paid.
(4)
Subsection (3) does not prevent the contractor from at any time
resuming the performance of its obligations.
(5)
A contractor that suspends the performance of its obligations in
accordance with this section:
(a)
is not liable for any loss or damage suffered by the principal or
by any person claiming through the principal; and
(b)
retains its rights under the contract, including any right to
terminate the contract.
Section 45
Determination may be enforced as judgment
(1)
A determination may be enforced as a judgment for a debt in a court of
competent jurisdiction.
(2)
For subsection (1), a determination signed by an adjudicator and
certified by the Registrar as having been made by a registered adjudicator
under this Part is taken to have been made under this Part.
(3)
Subsection (1) applies regardless of whether the determination is made
before or after the commencement of this subsection.
Division 6 General
Section 46
(1)
(1A)
Costs of adjudications
This section applies if:
(a)
an adjudicator is appointed to adjudicate a payment dispute; and
(b)
one of the following applies:
(i)
the party who applied for the adjudication withdraws the
application under section 28A;
(ii)
the adjudicator dismisses the application for adjudication
under section 33(1)(a);
(iii)
the adjudicator makes a determination of the dispute
under section 33(1)(b).
The adjudicator is entitled:
(a)
to be paid for the adjudicator's work:
(i)
at a rate agreed between the adjudicator and the parties
that is not more than the maximum rate prescribed by the
Regulations; or
(ii)
if a rate is not agreed – at the rate published under
section 55 for the adjudicator; and
(b)
to be reimbursed any expenses reasonably incurred in
connection with the work.
(2)
An appointed adjudicator who is disqualified under section 31 has the
entitlements in subsection (1A) for any adjudication work done before the
disqualification is notified to the parties.
(3)
Despite subsection (1A), an appointed adjudicator may refuse to give
notice of the adjudicator's decision or determination under section 33(1) or
36(2) or subsection (9) until the adjudicator has been paid and reimbursed in
accordance with subsection (1A).
(4)
The parties involved in a payment dispute are jointly and severally
liable to pay the costs of an adjudication of the dispute.
(5)
As between themselves, the parties involved in a dispute are liable to
pay the costs of an adjudication of the dispute in equal shares.
(6)
Subsections (4) and (5) do not prevent a decision being made under
section 36(2).
(7)
An appointed adjudicator may at any time require one or more parties
to provide a reasonable deposit, or reasonable security, for the costs or
anticipated costs of the adjudication.
(8)
A prescribed appointer, before appointing an adjudicator, may require
the applicant for adjudication to provide a deposit, or reasonable security, for
the costs or anticipated costs of the adjudication.
(9)
If a party involved in a dispute has paid more than the party's share of
the costs of an adjudication of the dispute, having regard to subsection (5),
the appointed adjudicator may decide that another party must pay to the first
party the amount of the costs that would result in all the parties paying an
equal amount of the costs.
(10) If an appointed adjudicator makes a decision under subsection (9):
(a)
the adjudicator must include in the decision the date on which
the amount is payable; and
(b)
Divisions 4 and 5 apply (with the necessary changes) to the
decision as if it were a determination of an appointed adjudicator.
(11) An appointed adjudicator may recover the costs of an adjudication from
a person liable to pay the costs in a court of competent jurisdiction as if the
costs were a debt due to the adjudicator.
(12) In this section:
costs of an adjudication means:
(a)
the entitlements of the appointed adjudicator under
subsection (1A); and
(b)
the costs of any testing done, or of any expert engaged, under
section 34(2)(c)(ii) or (iii).
Section 47
Effect of this Part on civil proceedings
(1)
This Part does not prevent a party to a construction contract from
starting proceedings before an arbitrator or other person or a court or other
body in relation to a dispute or other matter arising under the contract.
(2)
If other proceedings are started in relation to a payment dispute that is
being adjudicated under this Part, the adjudication must proceed despite the
proceedings unless all of the parties, in writing, require the appointed
adjudicator to discontinue the adjudication.
(3)
Evidence of anything said or done in an adjudication is not admissible
before an arbitrator or other person or a court or other body, except for an
application made under section 31(3) or a review under section 48.
(4)
An arbitrator or other person or a court or other body dealing with a
matter arising under a construction contract:
(a)
must, in making any award, judgment or order, allow for any
amount that has been or must be paid to a party under a determination
of a payment dispute arising under the contract; and
(b)
may make an order for the restitution of the amount paid and
any other appropriate order relating to the determination.
Section 48
Review of adjudicator's decision to dismiss application
(1)
A person who is aggrieved by a decision made under section 33(1)(a)
may apply to the Local Court for a review of the decision.
(2)
If, on the review, the decision is set aside and referred back to the
adjudicator, the adjudicator must make a determination under section 33(1)(b)
within 10 working days after the date on which the decision is set aside or any
extension of that time agreed on by the parties.
(3)
Except as provided by subsection (1), a decision or determination of an
adjudicator on an adjudication cannot be appealed or reviewed.
Notes
“a decision made under section 33(1)(a)”
This means a decision under section 33 to dismiss the application without a
consideration on the merits; see Perrinepod v Georgiou [2011] WASCA 217
disapproving dicta to the contrary on O’Donnell Griffin v John Holland.
“cannot be appealed or reviewed”
This refers to the right of review contemplated by subsection 1; see
Perrinepod v Georgiou ibid at paragraph 123. This provision does not
preclude judicial review on the ground of jurisdictional error; Perrinepod v
Georgiou ibid at paragraph 126
Part 4 Administration
Division 1 Construction Contracts Registrar
Section 49
Registrar
(1)
There is to be a Construction Contracts Registrar.
(2)
The Minister must, by Gazette notice, appoint a person to be the
Registrar.
Section 50
Provisions relating to appointment of non-public sector employee
(1)
This section applies if the person appointed to be the Registrar is not a
public sector employee.
(2)
The Registrar holds office for the period (not exceeding 5 years) stated
in the appointment and is eligible for re-appointment.
(3)
The Registrar holds office on the conditions (including conditions about
remuneration, expenses and allowances) determined by the Minister.
(4)
The Minister must terminate the appointment of a person as Registrar if
the person:
(a)
is found guilty of an indictable offence, whether in the Territory
or elsewhere; or
(b)
becomes bankrupt, applies to take the benefit of a law for the
relief of bankrupt or insolvent debtors, compounds with creditors or
makes an assignment of remuneration for their benefit; or
(c)
engages in paid employment outside the duties of the office
without the Minister's prior written approval.
(5)
The Minister may terminate the appointment of a person as Registrar:
(a)
on the ground of misbehaviour; or
(b)
on the ground of inability to satisfactorily perform the duties of
the office, whether because of physical or mental incapacity or for any
other reason; or
(c)
if the person is guilty of misconduct of a kind that would, if the
person were a public sector employee, warrant dismissal under that
Act; or
(d)
if the person is absent, without leave and without reasonable
excuse, for 14 consecutive days or 28 days in any 12 months.
(6)
A termination under subsection (4) or (5) must be given in writing to the
person.
(7)
The Minister may grant leave of absence to the Registrar on the terms
the Minister considers appropriate.
(8)
The Registrar may resign from office by written notice given to the
Minister.
Section 51
Functions
The Registrar has the functions conferred by this Act.
Division 2 Adjudicators and prescribed appointers
Section 52
Registering adjudicators
(1)
An individual is eligible to be a registered adjudicator if the person has
the qualifications and experience prescribed by the Regulations.
(2)
The Registrar may register a person as a registered adjudicator:
(a)
on the application of the person; or
(b)
on the nomination of a prescribed appointer.
(3)
The Regulations may prescribe a fee to be paid for making the
application or nomination.
(4)
The Registrar must not register a person as a registered adjudicator
unless satisfied the person is eligible to be registered.
(5)
The Registrar may cancel a person's registration as a registered
adjudicator if satisfied the person:
(a)
has ceased to be eligible to be registered; or
(b)
has misconducted, or is incompetent or unsuitable to conduct,
adjudications under Part 3.
(6)
The Registrar must keep a register of registered adjudicators and make
it available for public inspection at no charge.
(7)
If the Registrar refuses to register a person as a registered adjudicator
or cancels a person's registration as a registered adjudicator, the Registrar
must give the person written notice stating the following:
(a)
the decision;
(b)
the reasons for the decision;
(c)
the person may apply for a review of the decision to the Local
Court within 28 days after receipt of the notice.
Notes
“a register of registered adjudicators”
There is a list of registered adjudicators at
http://www.nt.gov.au/justice/policycoord/construction/adjudicator.shtml
Section 53
Review of registration decision
A person who is aggrieved by a decision of the Registrar under section 52 to
refuse to register the person as a registered adjudicator or to cancel the
person's registration as a registered adjudicator may apply to the Local Court
for a review of the decision.
Section 53A Adjudicators to give Registrar information
A registered adjudicator must, in accordance with the Regulations, give the
Registrar information prescribed by the Regulations.
Section 54
Publication of adjudicators' decisions
(1)
The Registrar must make available for public inspection at no charge
the result or a report of the decisions of registered adjudicators.
(2)
The Registrar must ensure there is not included in the result or report
made available under subsection (1):
(a)
the identities of the parties to the adjudication; or
(b)
any information in the determination identified under
section 38(1)(e) as being not suitable for publication because of its
confidential nature.
Section 55
Adjudicators' and prescribed appointers' rates to be published
(1)
A registered adjudicator or prescribed appointer must ensure the rate
at which the adjudicator or appointer charges for work under this Act is
published in a way approved by the Registrar.
(2)
Subsection (1) does not prevent any of the parties from agreeing on the
rate to be charged by a registered adjudicator or prescribed appointer for work
under this Act.
(3)
The published or agreed rate must not be more than the maximum rate
prescribed by the Regulations.
Division 3 Miscellaneous provisions
Section 56
Protection from liability
(1)
This section applies to a person who is or has been:
(a)
an appointed adjudicator; or
(b)
a prescribed appointer; or
(c)
the Registrar.
(2)
The person is not civilly or criminally liable for an act done or omitted to
be done by the person in good faith in the exercise or purported exercise of a
power, or the performance or purported performance of a function, under this
Act.
(3)
Subsection (2) does not affect any liability the Territory would, apart
from that subsection, have for the act or omission.
Section 57
Evidentiary provisions
(1)
A document purporting to be signed by the Registrar is taken to have
been signed by the person who was at the time duly appointed as the
Registrar in the absence of evidence to the contrary.
(2)
A certificate by the Registrar stating a person was or was not at a time
or in a period, or is or is not, a registered adjudicator is proof of the content of
the certificate in the absence of evidence to the contrary.
Part 5 Reviews of decisions
Section 58
Application of Part
This Part applies to a person who:
(a)
under section 32 or 53, is entitled to apply to the Local Court for
the review of a decision of the Registrar; or
(b)
under section 48(1), is entitled to apply to the Local Court for the
review of an appointed adjudicator's decision under section 33(1)(a).
Section 59
Application for review
The application must:
(a)
be made within 28 days after the person receives notice of the
decision; and
(b)
state fully the grounds on which it is made.
Section 60
Review by Local Court
(1)
On receipt of the application, the Local Court must review the merits of
the decision.
(2)
The review must be by way of hearing de novo.
Section 61
Operation and implementation of decision
(1)
The application does not affect the operation or implementation of the
decision.
(2)
However, the Local Court may make an order staying or otherwise
affecting the operation or implementation of so much of the decision as the
Court considers appropriate to effectively hear and decide the application.
(3)
The order:
(a)
is subject to any conditions stated in it; and
(b)
has effect:
(i)
for the period stated in it; or
(ii)
if no period is stated in it – until the Court has decided the
application.
Section 62
Decision on review
(1)
On reviewing the decision, the Local Court must make an order:
(a)
confirming the decision; or
(b)
setting the decision aside and substituting its own decision; or
(c)
for a decision under section 33(1)(a) – setting the decision
aside.
(2)
If the Court makes an order under subsection (1)(b), the substituted
decision is, for this Act (other than section 48(1) and this Part), taken to be the
decision of the Registrar or appointed adjudicator.
(3)
If the Court makes an order under subsection (1)(c), the Court must
refer the matter back to the adjudicator with the directions the Court considers
appropriate for making a determination under section 33(1)(b).
Part 6 Miscellaneous provisions
Section 63
Annual report
(1)
The Chief Executive Officer of the Agency administering this Act must
include in the Agency's annual report for each financial year a report about the
operation and effectiveness of this Act for the year.
(2)
In this section:
annual report means the annual report mentioned in section 28 of the Public
Sector Employment and Management Act.
Section 64
Regulations
(1)
The Administrator may make regulations, not inconsistent with this Act,
prescribing matters:
(a)
required or permitted to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
(2)
The Regulations may provide for any of the following:
(a)
fees payable, and the refund (wholly or partly) of fees paid,
under this Act;
(b)
the practice and procedure in adjudications.
(3)
The Regulations may:
(a)
make different provision in relation to:
(i)
different persons or matters; or
(ii)
different classes of persons or matters; or
(b)
apply differently by reference to stated exceptions or factors.
Section 65
Review of Act
The Minister must, as soon as practicable, conduct a review of the first
5 years of operation of this Act.
Part 7 Repeals and transitional matters
Section 66
Repeal of Workmen's liens legislation
The following Acts are repealed:
(a)
Act No. 575 of 1893 (SA) as it applies in the Territory;
(b)
the Workmen's Liens Amendment Act 2002 (Act No. 17, 2002).
67
Transitional provision
(1)
This section applies to a contract made before the repeal of the
repealed Act.
(2)
The repealed Act continues to apply to the contract as if it had not been
repealed.
(3)
This section does not limit section 12 of the Interpretation Act.
(4)
In this section:
repealed Act means the Workmen's Liens Act as in force immediately before
the commencement of section 66.
Schedule
Implied provisions
sections 16 to 24
Division 1 Variations
1
Variations must be agreed
The contractor is not bound to perform any variation of its obligations unless
the contractor and the principal have agreed on:
(a)
the nature and extent of the variation of the obligations; and
(b)
the amount, or a way of calculating the amount, that the principal
must pay the contractor in relation to the variation of the obligations.
Division 2 Contractor's entitlement to be paid
2
Contractor entitled to be paid
(1)
The contractor is entitled to be paid a reasonable amount for
performing its obligations.
(2)
Subclause (1) applies whether or not the contractor performs all of its
obligations.
Division 3 Claims for progress payments
3
Entitlement to make claim
The contractor is entitled to make one or more claims for a progress payment
in relation to the contractor's obligations it has performed and for which it has
not been paid by the principal.
4
When claim can be made
(1)
A claim by the contractor for a progress payment can be made at any
time after the contractor has performed any of its obligations.
(2)
The making of a claim for a progress payment does not prevent the
contractor from making another claim for an amount payable to the contractor
under or in connection with this contract.
Division 4 Making claims for payment
5
Content of claim for payment
(1)
A payment claim under this contract must:
(a)
be in writing; and
(b)
be addressed to the party to which the claim is made; and
(c)
state the name of the claimant; and
(d)
state the date of the claim; and
(e)
state the amount claimed; and
(f)
for a claim by the contractor – itemise and describe the
obligations the contractor has performed and to which the claim relates
in sufficient detail for the principal to assess the claim; and
(g)
for a claim by the principal – describe the basis for the claim in
sufficient detail for the contractor to assess the claim; and
(h)
be signed by the claimant; and
(i)
be given to the party to which the claim is made.
(2)
For a claim by the contractor, the amount claimed must be calculated in
accordance with this contract or, if this contract does not provide a way of
calculating the amount, the amount claimed must be:
(a)
if this contract states that the principal must pay the contractor
one amount (the contract sum) for the performance by the contractor of
all of its obligations under this contract (the total obligations) – the
proportion of the contract sum that is equal to the proportion that the
obligations performed and detailed in the claim are of the total
obligations; or
(b)
if this contract states that the principal must pay the contractor in
accordance with rates stated in this contract – the value of the
obligations performed and detailed in the claim calculated by reference
to the rates; or
(c)
otherwise – a reasonable amount for the obligations performed
and detailed in the claim.
(3)
Subclause (2) does not prevent the amount claimed in a progress claim
from being an aggregate of amounts calculated under one or more of
subclause (2)(a), (b) and (c).
Division 5 Responding to payment claims
6
(1)
Responding to payment claim by notice of dispute or payment
This clause applies if:
(a)
a party receives a payment claim under this contract; and
(b)
the party:
(i)
believes the claim should be rejected because the claim
has not been made in accordance with this contract; or
(ii)
disputes the whole or part of the claim.
(2)
The party must:
(a)
within 14 days after receiving the payment claim:
(i)
give the claimant a notice of dispute; and
(ii)
if the party disputes part of the claim – pay the amount of
the claim that is not disputed; or
(b)
within 28 days after receiving the payment claim, pay the whole
of the amount of the claim.
(3)
The notice of dispute must:
(a)
be in writing; and
(b)
be addressed to the claimant; and
(c)
state the name of the party giving the notice; and
(d)
state the date of the notice; and
(e)
identify the claim to which the notice relates; and
(f)
if the claim is being rejected under subclause (1)(b)(i) – state the
reasons for believing the claim has not been made in accordance with
this contract; and
(g)
if the claim is being disputed under subclause (1)(b)(ii) – identify
each item of the claim that is disputed and state, for each of the items,
the reasons for disputing it; and
(h)
be signed by the party giving the notice.
(4)
If under this contract the principal is entitled to retain part of an amount
payable by the principal to the contractor:
(a)
subclause (2)(b) does not affect the entitlement; and
(b)
the principal must advise the contractor in writing (either in a
notice of dispute or separately) of an amount retained under the
entitlement.
Division 6 Interest on overdue payments
7
Interest payable on overdue payments
(1)
Interest is payable on the part of an amount that is payable under this
contract by a party to another party on or before a certain date but which is
unpaid after that date.
(2)
The interest must be paid for the period beginning on the day after the
date on which the amount is due and ending on and including the date on
which the amount payable is paid.
(3)
The rate of interest at any time is equal to that prescribed by the
Regulations for that time.
Division 7 Ownership of goods
8
When ownership of goods supplied by contractor passes
(1)
Subclause (2) applies to goods that are:
(a)
related to construction work; and
(b)
supplied to the site of the construction work by the contractor
under its obligations under this contract.
(2)
The ownership of the goods passes from the contractor when
whichever of the following happens first:
(a)
the contractor is paid for the goods;
(b)
the goods become fixtures.
Division 8 Duties about unfixed goods on insolvency
9
(1)
Duties of principal and other persons about unfixed goods on insolvency
This clause applies if:
(a)
goods that are related to construction work have been supplied
to the site of the construction work by the contractor under its
obligations under this contract; and
(b)
the contractor has not been paid for the goods; and
(c)
the goods have not become fixtures; and
(d)
ownership of the goods has not passed from the contractor; and
(e)
the goods are in the possession of or under the control of:
(i)
the principal; or
(ii)
a person for whom, directly or indirectly, the principal is
performing construction work or to whom, directly or indirectly,
the principal is supplying goods or services that are related to
construction work; and
(f)
the principal or that person becomes an insolvent.
(2)
The principal and the person must not, during the insolvency, allow the
goods to become fixtures or to fall into the possession of or under the control
of another person (other than the contractor) except with the prior written
consent of the contractor.
(3)
In addition, the principal and the person must allow the contractor a
reasonable opportunity to repossess the goods.
(4)
In this clause:
insolvent means:
(a)
for an individual – an insolvent under administration as defined
in section 9 of the Corporations Act 2001; or
(b)
for a body corporate – an externally-administered body
corporate as defined in section 9 of the Corporations Act 2001.
Division 9 Retention money
10
Retention money to be held on trust
If the principal retains from an amount payable by the principal to the
contractor for the performance by the contractor of its obligations part of that
amount (the retention money), the principal holds the retention money on trust
for the contractor until whichever of the following happens first:
(a)
the retention money is paid to the contractor;
(b)
the contractor agrees in writing to give up any claim to the
retention money;
(c)
the retention money ceases to be payable to the contractor
under this contract;
(d)
an adjudicator, arbitrator or other person or a court or other
body.